Paternity means establishing a legal father for a child. Depending upon the relationship between the mother and father of a child paternity can be a straightforward matter. For example, if you are married to a woman and that woman gives birth to a child during your marriage it is presumed that you are the father to that child. This is the most straightforward example of paternity being established for a child. However, a non-marital relationship between mother and father complicates the paternity circumstances.
Do you find yourself in one of those complicated fraternity situations? If so, then today’s blog post from the Law Office of Bryan Fagan is for you. We are going to discuss topics related to paternity today. These subjects are important not only for you but for the child you have a relationship with. It is especially important for you as a father to assert your rights to a child when paternity is not presumed in your favor. The law does not necessarily help you do so. Rather, you must take matters into your own hands and seek to establish paternity through whatever means you have available to you.
If you are facing a paternity situation and want to make sure that your rights are protected, please reach out to the Law Office of Bryan Fagan. We have a team of attorneys who are experienced at advocating for fathers in Texas. Do not lose hope or become frustrated with the process. Instead, seek out representation and move forward with confidence.
Consider the following situation
Let’s walk through a hypothetical situation that may mirror a circumstance that you are going through. By reading this blog post you can gain a better understanding as to how paternity works in a range of circumstances.
You and your wife are married in Texas. You have two children named Brittany and Charles. Both of your children were born during the marriage itself. When your son Charles turned three years old you had a big birthday party for him at your house. However, a few days after his birthday your wife told you that a man she works with is the real father of Charles. Since your wife works out of state three days a week the man is not a resident of Texas. Additionally, you come to find out that your wife’s coworker did not know that Charles was conceived during a work trip over three years ago.
Becoming upset at the idea of another man being the father of your son you book the flight to the home state of your wife’s coworker. You immediately began to ask questions and make threats against this man. The man told your wife about the encounter. Your wife became irritated and upset. The following day she filed for divorce. In her divorce petition, she listed both Brittany and Charles as children of the marriage.
In response to your wife filing for divorce, you hired the Law Office of Bryan Fagan. With the assistance of our office, you filed an answer and counter-petition within the time limits provided under Texas law. Within both documents, you allege that only Brittany is a child of the marriage.
What are the legal questions brought about by the above scenario?
Not only is the above hypothetical situation a heartbreaking circumstance but it is also complicated. First, we would need to determine whether a paternity presumption applies in this situation. Next, what information would need to be provided to a court to rebut that fraternity presumption? Finally, we need to look at whether the out-of-state coworker may assert paternity rights to Charles. Answering these questions will give you a straightforward idea of paternity in your case.
Infidelity and the paternity presumption in marriage
In the above scenario, you would be the presumed father of Charles. The paternity presumption applies when a child is born within 300 days of a marriage. In this situation, Charles was born during your marriage. Therefore, the paternity presumption certainly applies. Other examples of how the paternity presumption would apply would be if an unmarried father signs an acknowledgment of fraternity even before the child is born. Another relevant scenario for the paternity presumption is if an alleged father lives with the child for the first two years of the child’s life and represents to others that the child is his. An alleged father is a person who presents himself or is presented as the father to a child.
Not only would the paternity presumption favor you as the father to Charles because you were married to his mother but also because the child is over three years old. Charles has lived with you his entire life and you have represented to others that Charles is your son. The coworker is not the presumed father in this situation. He would be an alleged father.
How to rebut the paternity presumption
The second issue for us to address relates to how to rebut a paternity presumption. In Texas, there is a four-year statute of limitations to try and rebut a paternity presumption. However, there are exceptions to this rule. The first would be if the mother and the alleged father did not reside with one another or have sexual relations during the time of conception. Another exception to this rule would be if the presumed or alleged father believes that the child was his son or daughter due to misrepresentations made by the mother.
In situations with contested paternity, genetic testing is necessary. When a genetic test shows that an alleged father is not the father of the child the court will enter an order stating this.
Paternity by estoppel
However, the doctrine of paternity by estoppel may prohibit you from denying or rebutting paternity. Paternity by estoppel may disallow the disapproval of paternity if you were to continue to act as a parent. Consider that if after you found out that you are not the father of Charles you continue to act as his father and live with him. While this would be understandable from a relational aspect it would damage your legal argument that you are not the child’s father. By continuing to act as Charles’s father the doctrine of paternity by estoppel may prevent you from trying to rebut paternity legally.
Your options when challenging paternity
In this situation, you would have the ability to challenge paternity. The reason is your son Charles is only three years old and therefore would be within the four-year statute of limitations. Additionally, your wife has misrepresented to you for years that Charles is your son. Your position could be argued that because of the misrepresentations the paternity by estoppel should not apply. Because you did not know about her affair you would have no reason to dispute paternity. Asking for a genetic test is another way to protect yourself in this situation.
What can an alleged father do to assert paternity?
Your wife’s coworker may also try and assert paternity. The first route to take would be to be genetically tested. This genetic test can be used as evidence to confirm paternity. Or you could file an affidavit with the court denying paternity. From there, the other man could file an acknowledgment of paternity. In a divorce scenario, a child custody suit may also be filed in which paternity may be established in the name of the out-of-state coworker. Moving forward you would only have fraternity rights concerning your daughter Brittany.
How does child support work in Texas?
Now, let’s suppose that you are involved in the life of a child. You were not married to the child’s mother when the child was born. However, you have always been a part of his life and seek to take care of him as best you can. Now that the child is turning one year old, you have tried to legally become the father to the child. By filing a child custody lawsuit, you have requested genetic testing. Once the genetic testing is completed you will be able to have the evidence you need to establish paternity.
Establishing paternity is step one when it comes to having child support assessed. A court cannot order you or any other man to pay child support unless he is legally determined to be the father of the child. Once paternity is established then child support may also be assessed. The guideline method of establishing child support holds that 20% of your net monthly resources will be paid to the child’s mother each month. If you have more than one child before the court, then an additional 5% of your resources go towards child support.
When it comes to determining your net monthly resources having an attorney is important. By having an attorney, you allow yourself an opportunity to more closely examine your sources of income. Accurately measuring your income means coming up with a fair determination of child support. On the other hand, if you are a mother reading this blog post then having an attorney can help you to discover potential sources of income that your child’s father may not be forthcoming about.
Child custody rights for new fathers in Texas
Not only do you have the obligation to pay child support for your child, but you also have a right to spend time with him or her. There is no guarantee of the type of visitation you will receive concerning your child. The different circumstances that your child is in may lead to custody time for you. Factors like the needs of your child and your aptitude as a parent matter a great deal when it comes to parenting time.
For example, if you have been an active and involved parent in the life of your child then that would be reflected in your visitation orders. There are even circumstances where you could be adjudicated as the primary conservator of your child. This means your child would live with you on a full-time basis. The child’s mother would have visitation rights. This outcome may be unlikely but for active and involved parents this is a definite possibility.
A question that the attorneys at the Law Office of Bryan Fagan received frequently has to do with fathers’ rights in Texas. In today’s blog post, we have been talking about presumptions quite a bit. One presumption that applies to many fathers in Texas relates to the rights of mothers being superior to fathers. Many men presume that they have no opportunity to win favorable custody rights related to their children. The thought would be that mothers always win custody cases and fathers are just playing for second place. Is this accurate?
Do family courts favor mothers in child custody cases?
In short, the law in Texas does not favor mothers or fathers when it comes to custody questions. Mothers and fathers start on equal footing and issues related to visitation, possession, and conservatorship of children. However, from there both your circumstances and that of the child’s mother are examined. This is where some mothers gain an advantage in the custody case versus some fathers.
For instance, consider that more mothers act as primary caretakers of children than fathers. This reflects fathers being more likely to work outside the home compared to mothers. It is also a reflection of mothers more generally taking on the role of primary caretaker. Just because you are not your child’s primary caretaker does not mean you are not a good father. Likewise, this does not mean that you have no opportunity to gain favorable visitation or conservatorship rights.
However, what this does mean is that you do have an uphill road to climb if you wish to become the primary conservator of your child. This is because there are years of history for a court to consider when it comes to the child’s mother being named as the primary conservator. This is where many fathers develop a belief that mothers have an advantage in a child custody case. It is not because Mothers are a favorite in the law. Mostly, this reflects the differing roles that mothers and fathers tend to take in the lives of their children.
Handling paternity as an unmarried father
Suppose that you are a well-meaning, unmarried man reading this blog post. You come to find out that your girlfriend is pregnant with a child. You have been in a long-term and committed relationship with this person. As a result, you feel confident that the child is yours. However, in the back of your mind, you have concerns about potential issues regarding paternity. What can you do in this situation to avoid any unnecessary disputes or problems regarding paternity? How best can you move forward?
The easy answer to this question would be to marry your child’s mother. By asking her to marry you can have the paternity presumption apply in your favor. Instead of being in a position where you must do something externally to the search fraternity, you can improve paternity automatically through a presumption. Marrying your child’s mother at any point before his birth would allow this Presumption to apply in your case.
Short of marrying the child’s mother, you may choose to talk to his mother about filling out an acknowledgment of paternity an acknowledgment of paternity involves both you and the child’s mother acknowledging you as the father of the child. If both of you complete an acknowledgment of paternity, then no other legal steps must be taken to assert paternity. You would be that child’s legal father by filling out the acknowledgment and filing it with the state of Texas.
Final thoughts on paternity issues in Texas
Whatever your situation is with paternity, the Law Office of Bryan Fagan has served many fathers in your position. Our experienced family law attorneys know how to guide fathers just like you through difficult situations. We take the responsibility seriously of serving Texas fathers. Whether you need to assert, defend, or deny paternity, our attorneys are here for you. We provide individualized care services for each of our clients. We know that you and your circumstances are unique and treat you that way.
Thank you for joining us today on the blog for the Law Office of Bryan Fagan. We hope that the information shared in this blog post has been both informative and entertaining. Any additional questions about the material contained in this blog post can be addressed to our attorneys. Our attorneys post blogs seven days a week, each day of the year.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
